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Wednesday 18 July 2018

Can my parents change their mind and take the farm off me?

Our solicitor tackles this sensitive issue

My parents never legally transferred the farm to me as I was too old to claim Young Trained Farmer Relief and they said they would leave it to me in their will.
My parents never legally transferred the farm to me as I was too old to claim Young Trained Farmer Relief and they said they would leave it to me in their will.

Dear Karen,

I’ve always got on well with my parents and they gave me the farm 10 years ago as I was the only one interested in it.

It is a small farm and myself and my partner both work off-farm jobs to keep it afloat. My parents gave me the farm subject to the condition that I give my siblings a site each if they should want it.

At the time I agreed to this as I thought we would come to an amicable agreement on where the sites would be. My brother has recently moved home and wants to build on the site. He wants to build on the best field we have which is 10 acres.

My parents are agreeing with him that I should give him the 10 acres and are now saying that they should have split the farm evenly between the three children.

My parents never legally transferred the farm to me as I was too old to claim Young Trained Farmer Relief and they said they would leave it to me in their will.

Can they now change the will and take the land from me?

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Dear Reader,

Firstly it is important to note that your parents can change their wills at any time as long as they are of sound mind. This means that they could very well change their wills to gift a site to each to your siblings or divide the farm equally between you and your siblings.

You do not state the acreage of the farm but it would appear from what you say that this farm is barely viable as it is, and the loss of 10 or 20 acres would be detrimental to it.

My first piece of advice would be to talk to your parents. Communication is key here. They may be trying to provide equally for all their children and may not have considered that if they only leave part of the farm to you that you may not be able to make ends meet and subsequently cease farming. I am sure that this is not what they want.

I would advise you to speak to them and make it clear that the only reason the farm is staying afloat is because both you and your partner are working off-farm jobs and contributing to it, and if you lose the best 10 acres you will have to cease farming the land as it will not make economic sense to continue.

Your parents could reconsider and potentially you could all come to an agreement as to sites, having regard to everyone’s needs. 

If your parents do change their wills and leave the best 10 acres to your siblings, you have options.

The first is Promissory Estoppel. This doctrine could be invoked where you were given a clear promise that you will receive the farm upon the death of your parents. You must then show reliance, that is that you relied on the promise and that it was reasonable to do so, and you must also show that you acted to your detriment in reliance of the promise.

Your case sounds almost like a classic case where the doctrine of Promissory Estoppel could be invoked. You were told you would inherit the farm and you started to work on the farm. You and your partner both have to work off the farm in order to keep the farm afloat. This certainly would constitute acting to your detriment.

The evidence must be corroborated by a third party, for example a neighbour, and if all of these conditions are satisfied, the Court may decide that it is reasonable having due regard to all the circumstances to transfer the farm to one person despite what the Will says.

However, in your case your parents have told you that they may transfer parts of the farm to your siblings. A court may consider that this constitutes notice and that you should have ceased to rely on the promise to your own detriment at this point.

The other option that may be available to you if your parents gift sites to your siblings in their will is an application under section 117 of the Succession Act 1965. This is made when a child feels that provision was not made for them in their parent’s will.

The court looks at whether the parent made proper provision for the child, judging the parent against the “prudent and just” parent standard. The onus is on the person making the application to prove that the parent did not make proper provision for them. This is difficult to establish and I do not think that you would succeed in such a claim.

You may have put money into the farm through a bank loan to improve it and have added value to the farm and you could seek to have such payments repaid to you.  

The courts are always reluctant to interfere with the will of a deceased person, and it is highly advisable to speak to a Solicitor about the potential remedies open to you in your individual circumstances before considering action. Talk to your parents as soon as possible so you can establish their position and future plan for the farm so that you can make an informed decision about your future. 

Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’.  Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.   

Email: info@walshandpartners.ie 

Web: www.walshandpartners.ie 

Disclaimer: While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.

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